The Milosevic Defense Strategy: Blame NATO and KLA

Having refused representation by counsel, Slobodan Milosevic presented his opening statement following two days of opening statement by the prosecution. ICTY rules allow for a statement from the accused, at the discretion of the Trial Chamber; it is not made under oath, unless the accused so elects, and the Trial Chamber will determine its probative value, i.e. how believable and relevant it is to the charges.

Slobodan Milosevic began his opening statement by reiterating his position that the Tribunal and his transfer to it are illegal. Judge May indicated that since these matters had already been ruled upon, they would not be addressed further by the Tribunal. Mr. Milosevic then began a two-day presentation, which contained the elements of his defense and accusations against NATO regarding its bombing campaign in Kosovo and Serbia and against KFOR and UNMIK for failure to protect Serb civilians for reprisals following the Kosovo war.

The issue of NATO's liability for war crimes was addressed by the ICTY in June 2000, when the Prosecutor concluded, based on a preliminary investigation, that further investigation was not warranted because 'there was no deliberate targeting of civilians or unlawful military targets by NATO during the campaign.' The ICTY has initiated investigations into violence allegedly perpetrated by Albanians against Serbs in Kosovo and Southern Serbia after the Kosovo war. One of the complications of these investigations is that a state of armed conflict must exist in order to trigger the application of all laws within the jurisdiction of the Tribunal except the Genocide Convention. No results of those investigations have been made public to date. Regardless, they are not relevant to a defense against the specific criminal charges in this proceeding.

Based on his opening statement, it appears Mr. Milosevic's 'defense' will consist of the following:
1. The West (U.S. and European countries) caused the break-up of Yugoslavia by recognizing Slovenian, Croatian and Bosnian declarations of independence. It promoted conflicts among nationalities in pursuit of world domination, in Yugoslavia, the USSR and Czechoslovakia.
2. The Serbian populations in Croatia and Bosnia-Herzegovina were defending themselves against aggression and potential aggression from Croatians who had murdered Serbs during WWII.
3. Late Croatian President Franjo Tudjman employed a public relations firm to obtain Western support. The Croatians fabricated crimes such as the destruction of Dubrovnik.
4. Serbia was not involved in the wars in Croatia and Bosnia-Herzegovina; as President of Serbia, he had no authority over local Serb forces in either Croatia or Bosnia-Herzegovina.
5. Western leaders looked to Milosevic as a peacemaker to end the wars in Croatia and Bosnia.
6. Actions in Kosovo were part of a country's legitimate police action against terrorists.
7. After NATO bombing commenced, Serbia and the FRY were exercising their legitimate right to defend against outside aggression.
8. Written orders existed during the Kosovo war prohibiting war crimes and crimes against humanity. Criminal acts committed by individuals were punished and, therefore, responsibility cannot be ascribed to their superiors under the theory of command responsibility (the validity of which he also disputes).
9. Massacres, such as the 45 people killed at Racak in January 1999, were fabricated. Deaths occurred as a result of fighting between Serbian forces and the Kosovo Liberation Army. Those killed were KLA fighters.

Whether the three-judge panel chooses to allow Mr. Milosevic to proceed with some or all of these defenses, depends on whether Mr. Milosevic establishes that they are relevant to defeat the specific charges he is facing.